Recent Case: Recent developments in child justice
| Jurisdiction | South Africa |
| Author | Julia Sloth-Nielsen |
| Published date | 24 May 2019 |
| Date | 24 May 2019 |
| Pages | 437-447 |
| Citation | (2015) 28 SACJ 437 |
Recent developments in child justice
JULIA SLOTH-NIELSEN
University of Western Cape
1 Age and criminal capacity
S v TS 2015 (1) SACR 489 (WCC) came before the Cape High Court
on automatic review. The accused had been charged on one count of
culpable homicide, allegedly committed at a time when she had just
reached 13 years of age. The victim was her biological father, whom
she had stabbed once, with fatal results. She had been assessed by bot h
a psychologist and a psychiatrist, pursuant to which t he magistrate
found that she had criminal capacit y. Represented by a legal aid
attorney, she tendered a guilty plea in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977, setting out in ful l the circumstances wh ich
led to the commission of the alleged offence. Having been convicted
on this plea, and subsequent to a probation ofcer’s report having
been compiled, she was sentenced to ve years’ compulsory residence
in a child and youth care centre in accordance with s 7 7(5) of the Child
Justice Act 75 of 2008. This sentence would expire short ly after she
reached her 18th bir thday.
The review judges took issue with both the conviction and the
sentence. First up for discussion was the question of her crimi nal
capacity, given that s 7(2) of the Child Justice Act recast s the common
law presumption of incapacity of a child below the age of 14 years (but
10 years or above), requiring the state to d ischarge the burden of proof
beyond reasonable doubt. The psychiatrist’s report was not conclusive:
pointing to her borderline mental retardat ion (coupled with a severe
stutter and poor verbal abstract rea soning and cognitive deciencies),
the expert opinion was that she was likely to have dif culty predicting
the consequence of her actions, even though she knew the difference
between right and wrong. It has always been part of the test for
criminal capacit y that the subject not only knows this d istinction but,
in addition, is able to act in accordance with that knowledge. Each
matter must, additionally, be assessed in the speci c context of the
factual circums tances of the case. In this ca se, in the context of her
limited intellectua l and developmental level, the psychiatrist’s view
was that her ability to control her impulses would be been ‘profoundly
affected’ by the sense of danger provoked by her father’s physical and
verbal attacks on her on the day in question. Her impai red verbal
reasoning and poor processing would, in the exper t’s view, have
prevented her from considering anything other th an self-protection at
437
(2015) 28 SACJ 437
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